United States v. Stark

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4162
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TRAVIS STARKS,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:08-cr-00467-HFF-3)
Submitted: March 9, 2010 Decided: March 26, 2010
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Everett P. Godfrey, Jr., GODFREY LAW FIRM, Greenville, South
Carolina, for Appellant. Robert Frank Daley, Jr., Assistant
United States Attorney, Columbia, South Carolina, Regan
Alexandra Pendleton, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Travis Starks appeals from a 188-month sentence
imposed following a guilty plea to conspiracy to possess with
intent to distribute and to distribute 500 grams or more of
cocaine, 50 grams or more of cocaine base, and 100 grams or more
of heroin in violation of 21 U.S.C. § 846 (2006). Starks’s
counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), stating that he believes there are no meritorious
issues for appeal, but questioning the reasonableness of
Starks’s sentence. Starks was advised of his right to file a
pro se brief, but has not done so. The Government has not filed
a brief. Finding no reversible error, we affirm.
When a sentence is challenged on appeal, this court
reviews the sentence for both procedural and substantive
reasonableness using an abuse of discretion standard. See
Gall v. United States, 552 U.S. 38, 51 (2007). Procedural
errors include failing to consider the factors articulated in
18 U.S.C. § 3553(a) (2006), treating the U.S. Sentencing
Guidelines Manual (2008) as mandatory, or “failing to adequately
explain the chosen sentence.” Id. Although not raised by
Starks’s counsel in the Anders brief, a review of the record
revealed an issue regarding the procedural reasonableness of
Starks’s sentence, specifically, whether the district court
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erred in failing to provide an individualized rationale when
sentencing Starks.
In evaluating the sentencing court’s explanation of a
selected sentence, this court has held consistently that, while
a district court must consider the sentencing factors in 18
U.S.C. § 3553(a) (2006) and explain its sentence, it need not
explicitly reference § 3553(a) or discuss every factor on the
record, particularly when the court imposes a sentence within a
properly calculated guidelines range. United States v. Johnson,
445 F.3d 339, 345 (4th Cir. 2006). At the same time, however,
the district court “must make an individualized assessment based
on the facts presented.” Gall, 552 U.S. at 50; see also Rita v.
United States, 551 U.S. 338, 356-57 (2007). The reasons
articulated by the district court for a given sentence need not
be “couched in the precise language of § 3553(a),” so long as
the “reasons can be matched to a factor appropriate for
consideration . . . and [are] clearly tied to [defendant’s]
particular situation.” United States v. Moulden, 478 F.3d 652,
658 (4th Cir. 2007). As this court recently explained in United
States v. Carter, 564 F.3d 325 (4th Cir. 2009), while the
“individualized assessment [of each defendant] need not be
elaborate or lengthy, . . . it must provide a rationale tailored
to the particular case at hand and [be] adequate to permit
meaningful appellate review.” Id. at 330 (internal quotation
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marks omitted). Thus, a conclusory statement that a specific
sentence is the proper one does not satisfy the district court’s
responsibilities. Id. at 328-29. In addition, this court
cannot presume that the district court adopted the arguments of
one of the parties while imposing sentence; an appellate court
may not guess at the district court’s rationale. Id. at 329-30.
Starks failed to preserve for appeal the adequacy of
the district court’s explanation for imposition of his sentence.
Therefore, this court reviews his sentence for plain error. See
United States v. Branch, 537 F.3d 328, 343 (4th Cir. 2008); Fed.
R. Crim. P. 52(b). Accordingly, Starks must demonstrate that
plain error was committed, and that the error affected his
substantial rights. Fed. R. Crim. P. 52(b).
Here, the record demonstrates that at sentencing, the
district court failed to provide an individualized rationale for
Starks’s sentence as required by our holding in Carter. The
district court merely stated that the sentence was entered
following consideration of the Guidelines and the relevant
§ 3553(a) factors, but did not further explicate the nature or
extent of that consideration, or how the sentencing factors
specifically related to Starks’s case. Moreover, the court did
not address the issues raised by Starks or his counsel at the
hearing regarding Starks’s drug use or his minor role in the
offense, or provide any other reason for choosing the sentence
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imposed. Accordingly, we find that the district court’s
explanation constituted error, and that the error was plain.
Nonetheless, the record does not support a finding
that this error affected Starks’s substantial rights. Starks’s
Guidelines range, which was properly calculated, was 188 to 235
months. Both Starks and his counsel requested only the district
court’s “mercy,” and did not seek any specific sentence within
or below the Guidelines range. The district court sentenced
Starks to 188 months, the lowest sentence within the Guidelines
range. Thus, the district court’s explanation did not have a
prejudicial effect on the sentenced imposed. Additionally,
because the sentence was within the properly calculated
Guidelines range, this court presumes on appeal that the
sentence is substantively reasonable. See United States v.
Allen, 491 F.3d 178, 193 (4th Cir. 2007). Starks has offered no
argument to rebut this presumption.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States
for further review. If Starks requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
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withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Starks. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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